The WCA has published a report comparing how 17 injured workers fare under the impairment guidelines that have been proposed by the Workers’ Compensation Board as compared to the current guidelines. The WCA found that:

Five out of seventeen workers would receive no compensation for their permanent injury based on the IME’s assessment of their injury under the present guidelines. Under the proposed guidelines, fourteen out of seventeen workers would receive no compensation for their permanent injury. One worker would receive less than $50, bringing the operative number to fifteen out of seventeen.

Of the two workers who would receive schedule loss benefits under the present guidelines, one award is reduced by about 75%.

Only one out of 17 workers would receive benefits under the proposed guidelines that are comparable to the award under the current guidelines.

Under the current guidelines, 15 out of 51 outcomes result in no compensation; 22 of 51 result in payment of $25,000 or less, and only 4 of 51 result in a payment greater than $50,000.

Under the proposed guidelines, 42 out of 51 outcomes would result in no compensation; 5 of 51 result in payment of $8,000 or less (three of those being under $50); and 4 of 51 result in a payment greater than $10,000.

Overall, under the present guidelines 36 of 51 outcomes would result in an award of at least $3,000, while under the proposed guidelines 45 of 51 outcomes would result in no or virtually no compensation.

The average award under the current guidelines is $18,873.63, and the median is $8,000. The average award under the proposed guidelines is $3,023.29.

It is clear that the implementation of the proposed guidelines would have a devastating impact on compensation for injured workers.

On April 10, 2017, the New York State Legislature directed the Workers’ Compensation Board to “consult with representatives of labor, business, medical providers, insurance carriers, and self-insured employers regarding revisions to permanency impairment guidelines … [which] shall be reflective of advances in modern medicine that enhance healing and result in better outcomes.”

On September 1, 2017, the Workers’ Compensation Board issued a group of proposed regulations and a draft of new “impairment guidelines.” Taken together, the proposed regulations and guidelines would:

Significantly impair the ability of injured workers to offer evidence in support of their claims and to obtain fair and just compensation.

Render injured workers subject to intimidation and investigatory abuse by employers, insurers, and the so-called “independent” medical examiners they employ.

Drastically reduce, and in most cases eliminate, compensation for permanent injuries to limbs, including: fractures; torn ligaments, tendons, and cartilage; dislocations; and surgery up to and in some cases including total joint replacement.

Improperly permit the Board to substitute its judgment for the provisions of the law.

The Board’s proposals completely disregard the Legislature’s direction to update its guidelines based on “advances in modern medicine.” Instead, the Board engaged in a wholesale revision of its forms, process, regulations and guidelines in a manner calculated to eliminate compensation benefits for injured workers.

It remains the WCA’s position that there is no cost-based, medical-based, or justice-based reason for these proposed changes.

A summary of the WCA’s comments on the proposed regulations and guidelines can be found HERE.

The full WCA analysis of the proposed regulations and guidelines can be found HERE.

The WCA has released a new paper refuting the claims of the Business Council that employer costs are rising (either in general or for schedule loss of use awards) and that the existing Workers’ Compensation Board impairment guidelines are “outdated.”

To the contrary, the data shows that workers’ compensation costs are lower today than they were two decades ago, and were just reduced by nearly a half billion dollars. In addition, schedule loss costs have remained flat for twenty-five years, with the exception of four years in which benefits were increased for middle- and high-wage workers in exchange caps on permanent partial disability payments, which saved employers a billion dollars.

The WCA report also shows that – contrary to the Business Council’s contention – the existing impairment guidelines in fact account for advances in medicine, and reduce awards as outcomes and functional capacity improve.

Finally, the WCA report reminds the Workers’ Compensation Board that the vast majority of workers believe their compensation benefits are inadequate under the present system, and that further benefit cuts would only exacerbate the existing unfairness and inequity to injured workers.

As the Workers’ Compensation Board prepares to release a proposal that is expected to revise its impairment guidelines to slash compensation for permanent injuries to limbs, it is crucial that it hear the voices of injured workers. Between May 16, 2017 and August 3, 2017, the WCA conducted a survey seeking the views of injured workers about their schedule loss of use awards. Over 1,500 injured workers responded to the survey, 847 of whom had a workers’ compensation case that involved a schedule loss award within the past five years.

Key findings from the survey are:

69% of injured workers believed that their schedule loss evaluation was too low under the present guidelines. 30% believed it was fair, and only 1% believed it was too high.

75% of injured workers believed that the money award they received was inadequate. 24% believed it was fair, and again only 1% believed it was too high.

75% of injured workers believed the award did not represent adequate compensation for their injury, while only a quarter believed it was fair.

81% of injured workers believed that the award did not adequately compensate them for wage loss resulting from their injury; only 19% believed it was adequate.

Low-wage workers are treated even more unfairly under the present guidelines. The survey showed that:

76% of low-wage workers believed their schedule loss evaluation was inadequate, compared to 65% for all other wage groups.

81% of low-wage workers believed that the money award they received was inadequate, compared to 71% and 72% for the other two wage groups.

82% of low-wage workers believed that the award did not represent adequate compensation for their injury, compared to 70% and 72% for the other two wage groups.

88% of low-wage workers believed that the award did not adequately compensate them for wage loss, compared to 77% for the other two wage groups.

In arriving at any revision to its guidelines, it is important for the Board to bear in mind that the overwhelming majority of injured workers believe that the benefits provided under the existing guidelines are grossly inadequate.[1] Low-wage workers in particular feel that they are treated unfairly and undercompensated under the existing guidelines. Any downward revision to permanency evaluations would exacerbate injustices that already exist, would result in low-wage workers receiving lower benefits than they received twenty-five years ago, and would eviscerate the bargain underlying the 2007 reforms.

The full report, including hundreds of comments of injured workers, is available HERE.

New York, NY – February 21, 2017 – The New York Workers’ Compensation Alliance has released a new paper analyzing new reports from the insurer-based New York Compensation Insurance Rating Board, the United States Department of Labor, and the National Academy of Social Insurance. The extensive data in this trio of reports clearly establishes that employer costs for workers’ compensation and benefits for injured workers are at historic lows, while insurer profits are skyrocketing. Continue reading "WORKERS’ COMP EMPLOYER COSTS, WORKER BENEFITS AT HISTORIC LOWS – INSURER PROFITS RISING"

For the past several years, business and insurance groups have sought to persuade the Workers’ Compensation Board to cut benefits for injuries that result in permanent loss or loss of use of a limb. These are known as “schedule loss awards,” and apply in cases such as limb amputation, fracture, surgery, loss of vision and hearing, and other permanent damage. Continue reading "WCA RELEASES NEW PAPER ON SCHEDULE LOSS COSTS 1992 – 2016"

Business and insurance groups including the Business Council of New York State have recently advocated for drastic reductions in workers’ compensation awards for “schedule loss of use.” These awards are payable to workers who suffer from permanent loss or loss of use of limbs, vision, or hearing. To justify their campaign, business and insurance interests contend that these awards are now “skyrocketing” as a result of the 2007 legislative reforms.

To the contrary, however, a review of cost trends in schedule loss cases from 1992 through 2015 shows that costs related to these cases were flat from 1992 to 2007. There were moderate increases from 2007 through 2012 that affected an ever-smaller portion of the workforce. Since 2012, however, costs in schedule loss cases have again been essentially flat. The data showing that there has been virtually no change in schedule loss costs for the past four years casts serious doubt on the validity of industry claims.

The WCA has just released a new paper analyzing the data and proving that the schedule loss of use costs have increased less than one-half of one percent in the past four years. You can read the paper here.

On November 14, 2016, the WCA wrote to the Workers’ Compensation Board commenting on the Board’s recent proposals to create a formulary for prescription medications and to require insurers to contract with pharmacy benefit management companies. The WCA expressed concerns about the impact the proposal would have on the availability of appropriate treatment for injured workers in a timely manner, as well as with the potential for increased system costs as yet another insurer-side “cottage industry” is developed to divert employer premium dollars from injured workers.